HomeMy WebLinkAboutReso 143-2000 RESOLUTION NO. 143-2000
CITY COUNCIL, CITY OF SOUTH SAN FRANCISCO, STATE OF CALIFORNIA
A RESOLUTION APPROVING THE ENCROACHMENT
AGREEMENT BETWEEN THE CITY OF SOUTH SAN
FRANCISCO AND BRITANNIA POINT GRAND REGARDING
AN ENCLOSED PEDESTRIAN BRIDGE
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of
South San Francisco that the City Council hereby approves the encroachment agreement attached
hereto as Exhibit A and further authorizes the City Manager to sign said agreement on behalf of
the City.
I hereby certify that the foregoing Resolution was regularly introduced and adopted by the
City Council of the City of South San Francisco at a Special meeting held on the 21st day
of November , 2000 by the following vote:
AYES:
NOES:
Councilmembers Pedro Gonzalez and Eugene R. Mullin, Mayor Pro Tem
Joseph A. Fernekes and Mayor Karyl Matsumoto
None.
ABSTAIN: None.
ABSENT:
Councilman John R. Penna
ATTEST:
Clerk
F:\WPD\M N RSW\405\001 \RESO\2000\Britannia reso
RECORDING REQUESTED BY, AND
WHEN RECORDED MAIL TO:
Britannia Pointe Grand Limited Partnership
1939 Harrison Street, Suite 715
Oakland, CA 94612
Attn: M. Shushan
(Space Above This Line for Recorder's Use)
ENCROACHMENT AGREEMENT
FOR THE INSTALLATION OF ENCLOSED PEDESTRIAN BRIDGE
OVER HARBOR BOULEVARD AT 169-170 HARBOR WAY IN SOUTH SAN
FRANCISCO
This Agreement ("Agreement") is dated this ~ day of ,2000, by and
between the CITY OF South San Francisco (herein termed "City") and Britannia Pointe
Grand Limited Partnership, a Delaware limited partnership, (herein termed "BRITANNIA").
RECITALS
A. BRITANNIA has received land use approvals (PUD 98-053) for construction
of one office building each at 169 Harbor Way, on the property described in Exhibit A
attached hereto (the "169 Harbor Way Parcel"), and 170 Harbor Way, on the real property
described in Exhibit B attached hereto (the "170 Harbor Way Parcel") and for construction
of an elevated and enclosed Pedestrian Bridge ("Pedestrian Bridge") between these two
buildings; and
B. BRITANNIA desires to construct, install and maintain the Pedestrian Bridge
as approved in PUD 98-053 within the airspace above Harbor Way, a public street owned
by the City of South San Francisco (see Exhibit C, Lot Book Guaranty); and,
C. City has the authority to regulate the terms and conditions for the use of the
Harbor Way Public Right-of-Way and for the construction, installation and maintenance of
the Pedestrian Bridge therein; and,
NOW, THEREFORE, in consideration of the recitals and the mutual promises
contained herein, City and BRITANNIA agree as follows:
AGREEMENT
DEFINITIONS
1. "City" means the City of South San Francisco, a municipal corporation of the State of
California, and includes the duly elected or appointed officers, agents, employees, and
volunteers of the City of South San Francisco, individually or collectively.
2. "Pedestrian Bridge" means that elevated, enclosed walkway connecting the buildings
located on the 169 Harbor Way Parcel and the 170 Harbor Way Parcel, respectively, in
South San Francisco as shown on the plans approved as part of PUD 98-053 and attached
hereto as Exhibit D and incorporated herein by reference.
3. "Emergency" is defined as a complete or partial failure or breakage of any portion of
the City infrastructure which impacts services. An emergency repair is defined as remedial
activity to protect the public health and safety, in the judgment of the City.
4. "Laws" means any order, certificate, judicial decision, statute, constitution,
ordinance, resolution, regulation, rule, tariff, administrative order, or other requirement of
any municipality, county, state, federal, or other agency having joint or several jurisdiction
over the parties to this Agreement, in effect either at the time of execution of this
Agreement or at any time during the location of the Facilities in the Harbor Way Public
Right-of-Way including, without limitation, any regulation or order of an official entity or
body. A reference to "Laws" shall include, without limitation, any lawful provision of the
South San Francisco Municipal Code or any other City ordinance, policy or regulation.
5. "BRITANNIA" shall mean BRITANNIA POINTE GRAND LIMITED PARTNERSHIP, a
Delaware limited partnership, and its lawful successors or assigns as permitted by Section
36, hereinafter.
6. "Affiliate of BRITANNIA" means Slough Estates USA Inc., a Delaware corporation
("SEUSA"), and any entity which controls, is controlled by or is under common control with
either BRITANNIA or SEUSA.
7. "Harbor Way Public Right-of-Way" means the surface of and the air space above
Harbor Way, including, without limitation, all public utility easements and public service
easements as the same now or may hereafter exist that are under the jurisdiction of the
City. This term shall not include any property owned by any person or agency other than
the City.
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8. "Encroachment Area" means that portion of the Harbor Way Public Right-of-Way
consisting of the portion of the air space above Harbor Way, at the location and heights
shown in the plans attached hereto as Exhibit D, within which BRITANNIA is authorized by
PUD 98-053 and by this Agreement to construct, install and maintain the Pedestrian Bridge.
9. "Public Works Director" means the individual designated from time to time as the
Public Works Director of the City, including any individual expressly designated to exercise
functions with respect to the rights and obligations of the Public Works Director under this
Agreement and any other individual, person, division, department, bureau, or agency of the
City as may, from time to time, exercise functions equivalent or similar to those now
exercised by the Public Works Director.
LIMITATIONS AND RESTRICTIONS
10. SUbject t° the pro~visions~of this Agreement a-~d all ap~iiCable-EaV~s, the City hereby
licenses and permits BRITANNIA (a) to construct, install, maintain, operate, reconstruct,
remove, and replace (hereinafter collectively referred to as "Construct" or "Construction")
the Pedestrian Bridge within the Encroachment Area, as shown on the approved plans
attached hereto as Exhibit D, for the purposes of providing a Pedestrian Bridge between
'---ti~e-I~Qil~lih-g on the-169HarborWay Parcel and the building on the 170 Harbor Way Parcel,
and (b) to use the surface and airspace portions of the Harbor Way Public Right-of-Way
from time to time as authorized herein, on a temporary basis, for Construction and related
activities relating to the Pedestrian Bridge. The structural design of the Pedestrian Bridge
shall be subject to the approval of the Public Works Director. Any work performed pursuant
to the rights granted to BRITANNIA under this Agreement which involves the structure or
external appearance of the Pedestrian Bridge, or any internal areas of the Pedestrian
Bridge that will be visible to drivers or pedestrians using the Harbor Way Public Right-of-
Way, shall be subject to the prior review and reasonable approval of the Public Works
Director. BRITANNIA shall not modify the structure or exterior appearance of the
Pedestrian Bridge without prior approval of the City. Such approval may include, as
necessary, a modification to PUD 98-053 as may be required by the South San Francisco
Municipal Code.
11. Except as permitted by applicable Laws or this Agreement, in the performance and
exercise of its rights and obligations under this Agreement, BRITANNIA shall not interfere
in any manner with the existence and operation of any and all public and private rights-of-
way, sanitary sewers, water mains, storm drains, gas mains, poles, overhead and
underground electric and telephone wires, electroliers, cable television, and other
telecommunications, utility and municipal property without the approval of the owner(s) of
the affected property or properties.
12. BRITANNIA shall comply with all applicable Laws in the exercise and performance of
its rights and obligations under this Agreement.
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13. This Agreement is not a grant by City of any property interest but is made subject
and subordinate to the prior and continuing right of City and its assigns to use all the Harbor
Way Public Right-of-Way in the performance of its duty, including but not limited to, public
use as a street and for the purpose of laying, installing, maintaining, repairing, protecting,
replacing and removing sanitary sewers, water main, storm drains, gas mains, poles,
overhead and underground electric and telephone wires, electroliers, cable television and
other utility and municipal uses together with appurtenances thereof and with right of
ingress and egress, along, over, across and in said Harbor Way Public Right-of-Way.
Nothing in this Section 13, however, shall be construed (a) to give members of the general
public any right of access to or use of the Pedestrian Bridge, (b) to give City or its
employees, agents and representatives use of or access to the Pedestrian Bridge, other
than for monitoring and inspection purposes under this Agreement or under applicable
Laws and/or to the extent reasonably required in Emergency situations, subject in each
instance to such reasonable prior notice, if any, as the circumstances reasonably permit, or
(c) to authorize any termination of BRITANNIA's rights under this this Agreement by or in
the name of City, except in accordance with the express termination provisions set forth in
Sections 39 and 40 of this Agreement.
t4. This Agreement-is-made subject to alt-easements, restrictions, conditions,
covenants?encumbrancesand claims of title which may affect the Harbor Way Public
Right-of-Way, and it is understood that BRITANNIA, at its own cost and expense, shall
obtain such permission (if any) as may be necessary and consistent with any other existing
rights.
15. The Construction, installation, operation, maintenance and removal of said
Pedestrian Bridge shall be accomplished without cost or expense to City, and shall be
performed subject to the reasonable approval of the Public Works Director in such a
manner as not to endanger personnel or property, or unreasonably obstruct travel on any
road, walk or other access thereof within said Harbor Way Public Right-of-Way.
Construction and subsequent maintenance that requires pa.rtial or complete closure of
Harbor Way shall only occur on Saturday or Sunday and shall require advance written
approval by the Public Works Director. All Construction will be planned and performed so
as to minimize the inconvenience to the traveling public. BRITANNIA will perform all
Construction in a manner that permits, to the extent possible during the Construction, safe
passage through and along the surface of the Harbor Way Public Right-of-Way for
pedestrians and vehicular traffic, including at all times appropriate signs, barricades, safety
devices, lights, flaggers, etc., in compliance with applicable laws and regulations.
Notwithstanding any other provisions of this Section 15, however, in the case of an
emergency relating to the Pedestrian Bridge which creates an imminent risk of material
harm to persons or property, BRITANNIA shall make reasonable efforts to give such prior
notice to City and the Public Works Director as the circumstances permit but shall also be
entitled to respond immediately to such emergency to the extent reasonably required to
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address and minimize such imminent risk of harm. BRITANNIA will provide personal
superintendence to the Construction, or have a construction contractor, competent foreman
or superintendent satisfactory to the Public Works Director at all times during the
Construction with authority to act for BRITANNIA.
16. In the event of an emergency repair of City facilities in proximity to any portion of the
Pedestrian Bridge, which repair may conflict with or threaten any portion of the Pedestrian
Bridge, BRITANNIA shall immediately, upon notice by City, provide a representative to the
repair site. Protective measures, as determined by the BRITANNIA representative, at the
election of City, may be undertaken by City at BRITANNIA's expense. Should City not elect
to perform such protective action, BRITANNIA shall provide the resources to conduct the
protective measures upon City's demand under the direction of City and in a manner
consistent, in City's sole discretion, with the execution of City's responsibilities in the
emergency. Priority shall be given to activities necessary to restore City services and for
public safety.
17. The obligations and duties herein are obligations and responsibilities applicable to
both the 169 Harbor Way Parcel and the 170 Harbor Way Parcel. In the event that both
Parcels are transferred to a permitted transferee under Section 36 of this Agreement and
such transferee expressly assumes all obligations of BRITANNIA arising or accruing under
this Agreement-from and after the date of such transfer, BRITANNIA shall be entitled to be
released from all obligations, responsibilities and liabilities arising or accruing from and after
the date of such transfer and BRITANNIA, City and the transferee shall execute and record
an Assumption of and Release from Obligations substantially in the form attached hereto as
Exhibit E. In the event one or both Parcels are conveyed in such a manner that the two
Parcels are no longer under common ownership, then all obligations and responsibilities of
BRITANNIA under this Agreement shall be deemed to attach to and run with the 170
Harbor Way Parcel and to become obligations and responsibilities solely of the owner of
the 170 Harbor Way Parcel, and the owner of the 169 Harbor Way Parcel (and
BRITANNIA, if it has sold the 170 Harbor Way Parcel) shall be entitled to be released from
future obligations and responsibilities under this Agreement pursuant to an Assumption of
and Release from Obligations substantially in the form attached hereto as Exhibit E, to be
executed (with appropriate modifications) and recorded by BRITANNIA, City and the new
owners of the 170 Harbor Way Parcel and the 169 Harbor Way Parcel. Prior to or
concurrently with any conveyance of the 169 Harbor Way Parcel and/or the 170 Harbor
Way parcel in such a manner that the two Parcels will no longer be under common
ownership, Britannia shall grant or reserve, as appropriate, reciprocal easements for the
benefit of the respective owners and occupants of the two respective Parcels to facilitate
the continued use of the Pedestrian Bridge by all appropriate parties and to facilitate all
necessary or desirable ongoing Construction activities by the owner of the 170 Harbor Way
Parcel.
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COMPLIANCE WITH STANDARDS
18. BRITANNIA agrees to keep said Pedestrian Bridge in good and safe condition and
free from any nuisance, to the reasonable satisfaction of the Public Works Director.
BRITANNIA shall not install or permit any signs to be placed on the exterior of the
Pedestrian Bridge, or in the interior of the Pedestrian Bridge if such signs would be visible
to pedestrians or drivers using the Harbor Way Public Right-of-Way (other than safety-
related signs, if any, which are approved by the Public Works Director as to design and
location). B RITAN N IA shall wash the windows of the Pedestrian Bridge at least once every
two months. Such window washing shall occur on Saturday or Sunday and if such washing
involves impairment of traffic along Harbor Way, BRITANNIA shall obtain City approval as
set forth in Section 15 herein. If BRITANNIA fails to maintain the Pedestrian Bridge as
required herein, after notice and reasonable opportunity to cure as provided in Section 39
herein, the City may, but is not obligated to, contract for maintenance services and may
conduct aesthetic maintenance such as window washing. Costs incurred by the City to
perform such maintenance shall be reimbursed by BRITANNIA.
19. BRITANNIA acknowledges that any change in or deviation from the approved plans
for the Pedestrian Bridge which affects the structure or exterior appearance of the
Pedestrian B'ridgeor'affects any interior areas of the Pedestrian Bridge that will be visible to
~edestrian-~t-drivers usingthe-Harbor Way Public Right-of-Way will require City approval
and may, at City's election, require BRITANNIA to enter into a modification of this
Agreement to reflect such changes and any additional terms or conditions that City may
impose in connection with such changes.
20. BRITANNIA shall not dispose of or allow the disposal of any hazardous or toxic
material regulated by federal, state, or local law in, on, or about the Harbor Way Public
Right- of- Way, except in compliance with all applicable laws.
RESERVATION OF RIGHTS,
21. BRITANNIA shall be subject to any taxes, fees or charges that City lawfully imposes
on the Pedestrian Bridge in the future.
NO FRANCHISE RIGHTS CREATED
22. Nothing in this Agreement shall be construed as granting or creating any franchise
rights.
REMOVAL
23. BRITANNIA shall not be required to remove the Pedestrian Bridge prior to
termination of this Agreement in accordance with its terms. If, at any time during the term
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of this Agreement, City wishes to engage in any resurfacing, realignment, widening or other
similar change in Harbor Way or to engage in the construction, maintenance or operation of
any other City facilities within or below the Harbor Way Public Right-of-Way (collectively,
"Future City Work"), and if such Future City Work is able to proceed notwithstanding the
presence of the Pedestrian Bridge but is rendered more costly to perform because of the
presence of the Pedestrian Bridge, then BRITANNIA shall reimburse City promptly for the
amount by which City's actual and reasonable costs for the Future City Work exceed the
costs that City can reasonably establish would have been incurred for the Future City Work
if the Pedestrian Bridge had not been in existence at the time of such Future City Work.
24. When removal of the Pedestrian Bridge is required under this Agreement,
BRITANNIA shall, after the removal of the Pedestrian Bridge, at its own cost, repair any
damage caused to the street or other public facilities in the course of such removal and
return the Harbor Way Public Right-of-Way and any public utility or service easements on
which the Pedestrian Bridge and related facilities were located to a safe and satisfactory
condition in accordance with the construction-related conditions and specifications as
established by City according to its standard practice. BRITANNIA shall give City at least
ten (10) days notice prior to any removal of the Pedestrian Bridge from the Harbor Way
Public Right-of-Way, and shall obtain prior to such removal any and all governmental
approvals-and permits required-for such-removal under any applicable Laws.
PLANS AND FEES
25. BRITANNIA shall furnish detailed plans of the work and other such information as
required by the Public Works Director and shall reimburse City for all actual processing,
field marking, engineering and inspection costs, and any other costs that the City may
reasonably incur in approving and monitoring BRITANNIA's construction activities
hereunder.
DAMAGE TO FACILITIES IN PUBLIC RIGHT-OF-WAY
26. BRITANN IA shall be responsible for any damage to City facilities and improvements
in the Harbor Way Public Right-of-Way due to the Construction performed by BRITANNIA
in the Harbor Way Public Right-of-Way, and BRITANN IA shall repair, replace and restore in
kind the said damaged facilities in accordance with City standards at BRITANNIA's sole
expense.
27. If the Encroachment Area has preexisting installation(s) placed in it, BRITANNIA
shall assume the responsibility to verify the location of the preexisting installation and notify
City and any third party of BRITANNIA's proposed installation. The cost of any work
required of such third party or City to provide adequate space or required clearance to
accommodate BRITANNIA's installation shall be borne solely by BRITANNIA.
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RECORDS AND FIELD LOCATIONS
28. BRITANNIA shall maintain accurate maps and improvement plans of said Pedestrian
Bridge located with the City. BRITANNIA shall, within thirty (30) days after completion of an
installation in the Harbor Way Public Right-of-Way, and otherwise upon demand of the
Public Works Director, deliver to the office of the Public Works Department free of charge,
and to other third parties interested in performing work within the Harbor Way Public Right-
of-Way for a reasonable charge upon request, within thirty (30) days after such demand,
such maps and plans as may be required to show in detail the exact location of the
Pedestrian Bridge installed within said Harbor Way Public Right-of-Way. In addition, the
Public Works Director may require BRITANNIA to provide the City with maps and plans on
computer diskettes suitable for a Computer Aided Design and Drafting application.
HOLD HARMLESS AND INDEMNIFICATION
29. BRITANNIA, jointly and severally, for itself, its successors, agents, contractors and
employees, agrees to indemnify, defend (with counsel, acceptable to City) and hold
harmless City, its officers, employees and agents and any successors to City's interest from
and against any and all claims, demands, losses, damages, liabilities, fines, penalties,
charges; administrative-and judicial proceedings andorders; judgments, remedial actions of
any kind, and-all-costs and cleanup actions of anykind;-all-costs and expenses incurred in
connection therewith, including, without limitation, reasonable attorney's fees and costs of
defense (collectively, the "Losses") to the extent such Losses arise directly or indirectly
out of the activities of BRITANNIA described in this Agreement, but excluding in all events
any Losses to the extent arising from the intentional or negligent acts of City or its officers,
employees or agents.
INSURANCE
30. BRITANNIA shall obtain and maintain at all times during the term of this Agreement
comPrehensive general liability insurance protecting BRITANNIA in an amount of not less
than One Million Dollars ($1,000,000) per occurrence, including bodily injury and Property
damage, as a combined single limit or equivalent. Such insurance shall name City, as
defined above, as additional insured parties. Coverage shall be in accordance with the
limits specified and the provisions indicated herein. Claims-made policies are not
acceptable. When an umbrella or excess coverage is in effect, it must follow the form of
the underlying coverage. Such insurance shall not be canceled or materially altered to
reduce coverage without giving City at least thirty (30) days advance written notice of such
cancellation or change, and it shall be the responsibility of BRITANNIA to notify City of such
change or cancellation.
31. BRITANNIA shall file the required original Certificate of Insurance with
endorsements with City, subject to City's approval, which Certificate shall clearly state:
8
A. Policy number; name of insurance company; name, address and telephone
number of agent or authorized representative; name, address and telephone number of
insured; project name and address; policy expiration date; and specific coverage amounts;
B. That the insurer will endeavor to give City thirty (30) days prior notice of
cancellation or non-renewal; and
C. That BRITANNIA's insurance is primary.
32. Workers Compensation Insurance: BRITANNIA shall obtain and maintain at all
times during any Construction under this Agreement statutory Workers Compensation and
employer's liability insurance as required by law and furnish City with a certificate showing
proof of-such coverage. To the extent any such Construction work is contracted or
subcontracted out by BRITANNIA to third-party contractors, the requirements of this
Section 32 shall be met if each contractor or subcontractor who has employees physically
present at the Construction site maintains the insurance required by this Section 32 with
respect to such contractor's or subcontractor's own employees.
33. -lnst]rance Companies: Insurance companies must be admitted in-California and
rated at~ le~,~t A:¥1I in Best's-Insurance Guide.
34. Deductible and Self-Insured Retentions and Proof of Insurance: Prior to the
execution of this Agreement, any deductibles or self-insured retentions must be stated on
Certificates of Insurance, and the Certificate of Insurance must be sent to and approved by
City.
PERFORMANCE BOND
35. Prior to the issuance of a building permit, BRITANNIA shall provide City with a
performance bond naming City as obligee in the amount equal to one hundred percent
(100%) of value of the Construction within and affecting the Public Right-of-Way to
guarantee and assure the faithful performance of BRITANNIA's obligations under this
Agreement. City shall have the right to draw against the bond in the event of a default by
BRITANNIA or in the event that BRITANNIA fails to meet and fully perform any of its
obligations, only after providing BRITANNIA with notice and an opportunity to cure. The
form of the bond shall be subject to the reasonable approval of the City Attorney. The bond
shall remain in full force until sixty (60) days after the Construction is completed, inspected
and approved by the Public Works Director. This Section shall not be construed to
eliminate or reduce BRITANNIA's continuing obligation to repair any damage to the public
right-of-way resulting from the installation of the Pedestrian Bridge or to remove the
Pedestrian Bridge pursuant to Section 24. In lieu of the performance bond required
hereunder, BRITANNIA may, in its sole discretion, elect to provide alternate security to City
9
in the form of a letter of credit, a pledge of a certificate of deposit or other deposit account,
or other alternate security approved by the City Attorney, provided that the terms and
amount of such alternate security shall be substantially similar to the terms of the
performance bond described above and shall in all other respects be reasonably
acceptable to City.
MISCELLANEOUS
36. This Agreement shall not be assignable by BRITANNIA without the prior written
approval of City, which approval shall not be unreasonably withheld, conditioned, or
delayed; provided, however, that so long as BRITANNIA is not in material default
hereunder (beyond any applicable cure periods) and so long as the transferee expressly
assumes BRITANNIA's obligations hereunder from and after the date of transfer as
contemplated in Section 17 above, BRITANNIA shall be entitled to transfer and assign its
rights and obligations hereunder, with prior or concurrent written notice to City but without
the approval of City, (a) to any Affiliate of BRITANNIA and/or (b) after completion of the
initial Construction of the Pedestrian Bridge, to any other successor owner of the 169
Harbor Way Parcel and/or the 170 Harbor Way Parcel, subject to the provisions of Section
17 above.
37. This Agreement contains the entire understanding between the parties with respect
to the subject matter herein. There are no representations, agreements or understandings
(whether oral or wdtten) between or among the parties relating to the subject matter of this
Agreement which are not fully expressed herein. This Agreement may not be amended
except pursuant to a written instrument signed by all parties.
38. BRITANNIA or its successors shall be solely responsible for any possessory use tax
imposed as a result of this Encroachment Agreement.
TERMINATION
39. This Agreement may be terminated by City upon ninety (90) days prior written notice
to BRITANNIA for failure of BRITANNIA to fully cure, within thirty (30) days after receipt of
written notice from City, any material default of BRITANNIA's obligations hereunder of
which the City has notified BRITANNIA in writing, or, if such cure cannot reasonably be
effected within thirty (30) days, then for failure of BRITANNIA to commence such cure
within thirty (30) days after receipt of written notice from City and thereafter to pursue such
cure to completion with reasonable diligence, subject to delays caused by casualty, acts of
God or other circumstances beyond BRITANNIA's reasonable control (excluding any
financial inability). A failure on the part of any party to perform any material obligation
imposed upon such party shall constitute a default and a material breach Of this
Agreement, subject to the cure rights specified in this Section.
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40. This Agreement shall not be terminable by City, other than pursuant to Section 39
above, during the first thirty (30) years after the date hereof. This Agreement shall
terminate in all events thirty (30,) years after the date hereof, unless extended by mutual
written agreement of the parties prior to such termination date. Upon any termination
pursuant to Section 39 or this Section 40, BRITANNIA shall remove the Pedestrian Bridge
in accordance with the provisions of Section 24 above.
41. BRITANNIA may terminate this Agreement at any time upon not less than ninety
(90) days prior written notice to City, subject to BRITANNIA's obligations under Section 24
hereof with respect to removal of the Pedestrian Bridge upon such termination.
NOTICE
42. BRITANNIA shall designate a representative to be available to City staff 24 hours a
day, 7 days a week, regarding problems or complaints resulting from the facilities installed
pursuant to this Agreement and shall provide telephone or other appropriate contact
information through which City can reach such designated representative at any time
regarding anysuch problems or complaints.- BRITANN IA-shall also designatea person in
California who-is authorized to accept service of process on behalf of BRITANNIA.
43. All notices given or which may be given pursuant to this Agreement shall be in
writing and transmitted by certified United States mail, return receipt requested, or by
private delivery systems, or by facsimile if followed by certified United States mail, return
receipt requested, or by private delivery systems, effective in each case upon receipt or
refusal of delivery, addressed as follows (or to any substitute address provide by a party
from time to time by like notice):
To City at:
City of South San Francisco,
City Manager
400 Grand Avenue
South San Francisco, CA 94080
Facsimile: 650.829.6665
To BRITANNIA at:
Britannia Pointe Grand Limited Partnership
1939 Harrison Street, Suite 715
Oakland, CA 946'12
Facsimile: 510.763.6262
11
With copy to:
Slough Estates USA Inc.
33 West Monroe Street, Suite 2000
Chicago, IL 60603
Facsimile: 312.558.9041
12
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed in
duplicate on the date and year first written herein.
Date: ,2000
CITY OF SOUTH SAN FRANCISCO
Attest:
By:
Michael A. Wilson, City Manager
City Clerk
City of South San Francisco
Approved as to form:
City Attorney
Date: ..... --,2000 Britannia :Pointe Grand Limited Partnership
By: Britannia Pointe Grand, LLC, a
California limited liability
Company, General Partner
By:
T. J. Bristow, Manager
Approved as to form:
Counsel for Britannia
F:\WPD\MN RSV~A405\001~AGREI:~000\October\B rittEncroa2
13
NOTARY ACKNOWLEDGMENTS
State oi Cn]i{oruia )
)
Count~ of )
On , , ]>e{ore me, , a Notar~
Public in and {or said county and state, personally appeared , personally
known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s)
is/are subscribed to the within instrument and acknowledSed to me that he/she/the9 executed the same
in his/her/their authorized capacit9 (les), and that b9 his/her/their siSnature on the instrument the
person(s), or the entitg(ies) upon behalf of which the person(s) acted, executed the instrument.
hand and o{ficin] sen].
Notary Public
NOTARY ACKNOWLEDGMENTS
State o{ California )
County of )
On , , beiore me, , a Notan~
Public in and {or said count~ and state, personetlly appeared , personalltj
known to me (or proved to me on the basis of satisfacto~ evidence) to be the person(s) whose name(s)
is/are subscril~d to the within instrument and acknowledsed to me that he/she/thet~ executed the same
in his/her/their authorized capacity(ies), and that b9 his/her/their siSnature on the instrument the
person(s), or the entittj(ies) upon behn]{ of which the person(s) acted, executed the instrument.
WITN~ m~ hand and official sen].
14
Notary Public
!0/24/00 _'r_u~ :~..q:0~ FAX ',' x,i$ 95~, ?.82~ FOLGER LEV'r,',: & KAHY ::r. ~0~,
Exhibit A
Ex.hibit B
Exhibk C
Exhibit D
'Exhibit E
I :\ 170351300 $'~)0 ] 8DEKIN$
EXHIBITS
Legal Description of 169 Harbor Way Parcel _[[Britannia to supply)
Legal Description of 170 Harbor Way Parcel [Br,kannia to supply~
Lot Book Guaranty [Britannia to supply]
Plans from PUD 98-053 [attached]
Form of Assumption of and Release from Obligations [attached]
Page I - !0
Brltin~a
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BRITANNIA POINTE GiRAND
PERSPECTWE
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Gran~l
PARTIAL PEDESTRIAN BRIDGE PLAN, SECTION AND ELL=VATIOli,9
Britannia
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SITE PLAN
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RECORDING REQUESTED BY, AND
WHEN RECORDED MAIL TO:
Britannia Pointe Grand Limited Partnership
1939 Harrison Street, Suite 715
Oakland, CA 94612
Attn: M. Shushan
(Space Above This Line for Recorder's Use)
ASSUMPTION OF AND RELEASE FROM OBLIGATIONS
This Assumption of and Release from Obligations ("Assumption and Release")
is executed this ~ day of , , by the CITY OF SOUTH SAN
FRANCISCO ("City"), Britannia Pointe Grand Limited Partneship, a Delaware limited
partnership ("Britannia" ), and __, a
("Buyer"), with reference to the following facts:
A. City and Britannia are parties to an Encroachment Agreement for the
Installation of an Enclosed Pedestrian Bridge over Harbor Way at 169-170 Harbor Way in
South San Francisco (the "Encroachment Agreement"), which Encroachment Agreement
is dated as of ,2000 and was recorded on ,2000 as
Instrument No. in the Official Records of San Mateo County, California.
The Encroachment Agreement authorizes Britannia to construct and maintain an enclosed
pedestrian bridge in the airspace above Harbor Way, a public street owned by City, and
establishes certain terms, conditions and obligations binding on 'Britannia with respect to
such enclosed pedestrian bridge.
B. Britannia has sold to Buyer, or is selling to Buyer substantially concurrently
with the execution and recordation of this Release, the 170 Harbor Way Parcel as defined
in the Encroachment Agreement. In compliance with Section [15?] of the Encroachment
Agreement, the parties are executing this Assumption and Release to reflect the
assumption by Buyer of Britannia's obligations under the Encroachment Agreement and
the release of Britannia from any such obligations arising or accruing after the date of
Buyer's acquisition of the 170 Harbor Way Parcel from Britannia.
NOW, THEREFORE, for good and valuable consideration, City, Britannia and Buyer
hereby acknowledge and agree as follows:
1. Assumption of Obligations by Buyer. Buyer hereby expressly assumes and
agrees to perform and discharge, for the benefit of City and of the owner of the 169 Harbor
Way Parcel (as defined in the Encroachment Agreement) during any period in which Buyer
is not the owner of such 169 Harbor Way Parcel, all obligations of Britannia arising or
accruing under the Encroachment Agreement from and after the date of recordation of the
grant deed evidencing Buyer's acquisition of the 170 Harbor Way Parcel from Britannia.
2. Release of Britannia from Future Obligations. City fully and irrevocably
releases Britannia, its partners, and their respective partners, shareholders, members,
officers, directors, managers, agents, employees, successors and assigns (including, but
not limited to, all successor owners of the 169 Harbor Way Parcel) from all obligations
arising or accruing under the Encroachment Agreement from and after the date of
recordation of the grant deed for Buyer's acquisition of the 170 Harbor Way Parcel from
Britannia (the "Future Obligations"), from any and all responsibility for the performance
or discharge of such Future Obligations and from any and all liabilities, damages, claims,
costs and expenses arising out of or in connection with the performance, discharge or
breach of such Future Obligations.
3. Recording. This Assumption and Release shall be recorded in the Official
Records of San Mateo County, California, in order to evidence as a matter of public record
the above-described assumption and release of obligations under the Encroachment
Agreement.
IN WITNESS WHEREOF, City, Britannia and Buyer have executed this Assumption
and Release as of the date first set forth above.
Britannia:
Britannia Pointe Gran_d.
Partnership, a Delaware
partnership
LimJ. ted~
limited
City:
City of South San Francisco
By: Britannia Pointe Grand LLC, a
California limited liability company,
General Partner
By:
, City Manager
Attest:
By:
T. J. Bristow, Manager
Buyer:
City Clerk
City of South San Francisco
Approved as to form:
a
By:
Its:
City Attorney
17035X3008\0017
NOTARY ACKNOWLEDGMENTS
State of California )
)
County of
On ,__, before me, , a Notary
Public in and for said county and state, personally appeared
, personally known to me (or proved to me on
the basis of satisfactory evidence) to be the person(s) whose name(s) is/aro subscribed to
the within instrument and acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies), and that by his/her/their signature on the instrument
the person(s), or the entity(ies) upon behalf of which the person(s) acted, executed the
instrument.
WITNESS my hand and official seal.
Notary Public
State of California )
)
County of
On , , before me, , a Notary
Public in and for said county and state, personally appeared
, personally known to me (or proved to me on
the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to
the within instrument and acknowledged to me that he/she/they executed the same in
his/hefltheir authorized capacity(ies), and that by his/her/their signature on the instrument
the person(s), or the entity(ies) upon behalf of which the person(s) acted, executed the-
instrument.
WITNESS my hand and official seal.
Notary Public
State of )
)
County of
On, .. , before me, , a Notary
Public in and for said county and state, personally appeared
, personally known to me (or proved to me on
the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to
the within instrument and acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(les), and that by his/hedtheir signature on the instrument
the person(s), or the entity(ies) upon behalf of which the person(s) acted, executed the
instrument.
WITNESS my hand and official seal.
Notary Public